Kakurungu v Tumwine (Civil Appeal 95 of 2015)

Court of Appeal · [2020] UGCA 2159 · 2020 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal from a decision of the High Court (first appellate court) which had affirmed the Chief Magistrate's judgment in a land trespass and ownership suit

Decision

Appeal dismissed; concurrent findings that the suit land belongs to the estate of the late Kaijamahe and that the appellant is a trespasser upheld

The full judgment

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Holding

The Court of Appeal dismissed the second appeal save for one ground. It held that an objection to inadmissibility of a document for non-payment of stamp duty must be raised at trial when the document is tendered, not for the first time on appeal. It upheld the appellant's complaint that the sale agreement (EP2(a)) was wrongly admitted as secondary evidence under section 64(1)(a) of the Evidence Act, because the person allegedly holding the original was never compelled to produce it. However, excluding that exhibit did not alter the result, as ample other evidence supported the concurrent findings that the suit land belonged to the late Kaijamahe's estate and the appellant was a trespasser.

Facts

The respondent, suing on behalf of the estate of the late Kaijamahe Boniface, claimed that the suit land at Kanyabulezi belonged to the estate. The late Kaijamahe had acquired the land partly by first occupation and partly by repurchase from Rukangara after a fraudulent sale. After returning from exile in 1986, Kaijamahe permitted his brother Baribaana William to graze cattle on the land. Upon Kaijamahe's death, Baribaana brought the appellant onto the land, who began constructing on it. The appellant contended his father Baribaana had acquired the land by first occupation in 1975 and that the land Kaijamahe bought was a different parcel occupied by Kanyamugwite. The Chief Magistrate found for the respondent, holding the suit land formed part of the estate and the appellant was a trespasser, and granted a permanent injunction. The High Court dismissed the appellant's first appeal.

Issues

Whether the first appellate court failed in its duty to subject the evidence to a fresh and exhaustive scrutiny.
Whether an objection to inadmissibility of a document for non-payment of stamp duty can be raised for the first time on appeal.
Whether the trial court correctly admitted exhibit EP2(a) as secondary evidence under section 64(1)(a) of the Evidence Act.
Whether, after excluding the impugned exhibit, the finding that the suit land belongs to the estate of the late Kaijamahe could stand.

Orders

Appeal dismissed save for ground 4, which succeeded.
Appellant to pay 7/8th of the respondent's costs on appeal and costs in the courts below.

Key headnotes

Documentary Evidence — Stamp Duty — Time for Objecting to Admissibility

An objection to the inadmissibility of a document for want of stamp duty under section 42 of the Stamps Act must be raised before and decided by the trial court when the document is sought to be put in evidence; it cannot be raised for the first time on appeal.

Documentary Evidence — Secondary Evidence — Section 64(1)(a) Evidence Act

Secondary evidence of a document is not admissible under section 64(1)(a) of the Evidence Act where the original is said to be held by a person legally bound to produce it but that person is not compelled to produce it and denies custody; in such circumstances the document is improperly admitted.

Appeals — Second Appellate Court — Scope of Review of Concurrent Findings

A second appellate court will not ordinarily interfere with concurrent findings of fact of the trial court and first appellate court unless special circumstances exist, such as the first appellate court's failure to re-evaluate the evidence; and the first appellate court re-evaluates evidence only in light of the specific grounds of appeal raised before it.

Appeals — Effect of Wrongly Admitted Evidence

The wrongful admission of a document does not vitiate a decision where there remains sufficient other evidence on record to support the court's findings.

Licence — Permission to Graze — Reversion of Land on Death

Permission granted to a relative to graze cattle on land amounts to a revocable licence which expires on the death of the grantor, whereupon the land reverts to the grantor's estate, and continued occupation thereafter without consent of the administrators constitutes trespass.

Legislation cited (9)

Stamps Act cap 342 s.42
Stamps Act cap 342 s.2
Evidence Act cap 6 s.60
Evidence Act cap 6 s.61
Evidence Act cap 6 s.64(1)(a)
Evidence Act cap 6 s.65
Judicature (Court of Appeal Rules) Directions SI 13-10 r.32(2)
Judicature (Court of Appeal Rules) Directions SI 13-10 r.43(3)
Judicature (Court of Appeal Rules) Directions SI 13-10 r.71(1)

Cases cited (11)

Kakooza Godfrey v Uganda [2010] UCSC 11
Tendo Simon Kabense v Barclays Bank (U) Ltd [2012] UGHC 120
Horizon Coaches Ltd v Francis Mutabazi & 3 Others [2002] UGSC 43
Choem Tour Agents 2007 (U) Ltd v Masaka Municipal Local Government [2011] UGSC 4
Kwoba v Ssebuwawo [2019] UGCA 2
Milly Masembe v Sugar Corporation Ltd and Anor (Civil Appeal No. 1 of 2000)
Kakooza Godfrey v Uganda (Criminal Appeal No. 3 of 2008)
Yokoyada Karwa v. Maria Kiwanuka & Another [1979] EA
Dieter Pabst v Abdu Ssozi & Anor (Civil Appeal No. 116 of 2000)
Amama Mbabazi v Musinguzi and Anor (Election Petition Appeal No. 12 of 2002)
Fenekansi Semakula v Ezekiel S.M.S. Mulondo [1985] H.C.B. 29

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.